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2023 Supreme(Del) 518
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIBHU BAKHRU, AMIT MAHAJAN, JJ.
Ashish Bansal - Petitioner
Versus
Principal Commissioner of Customs (Preventive) and Another - Respondents
W.P.(C) No. 14549 of 2022 and CM Appl. No. 44489 of 2022
Decided On : 01-05-2023
Mr. Gandharv Anand and Ms. Reena Rawat, Advs., Mr. Harpreet Singh, SSC with Ms. Suhani Mathur, Advs., Mr. Anand Solanki, Adv.
The court considered the financial status of the petitioner and directed the CESTAT to consider the appeal without insisting on any pre-deposit, ensuring access to justice.
Headnote:
Customs Act - Impugning Order-in-Original - Constitutional Validity - Show Cause Notice - Waiver of Pre-deposit
Fact of the Case:
The petitioner challenged an order-in-original imposing a penalty under the Customs Act based on statements made by certain persons. The petitioner's financial status was considered, and the court directed the CESTAT to consider the appeal without insisting on any pre-deposit.
Finding of the Court:
The court found that the penalty was imposed solely on the basis of statements without any other material. Considering the financial status of the petitioner, the court directed the CESTAT to consider the appeal without pre-deposit.
Issues: Impugning order-in-original, Constitutional validity of sections of Finance Act, Show cause notice, Waiver of pre-deposit under Customs Act
Ratio Decidendi: The court considered the financial status of the petitioner and the manner in which the penalty was imposed, and found that insistence on pre-deposit would render the petitioner's remedy of an appeal illusory.
Final Decision: The petition was disposed of with the direction for the CESTAT to consider the petitioner's appeal without insisting on any pre-deposit. The court clarified that it had not expressed any opinion on the merits of the challenge to the order-in-original.
JUDGMENT :
Vibhu Bakhru, J.
The petitioner has filed the present petition, inter alia, impugning an order-in-original dated 18.12.2020, passed by the Principal Commissioner of Customs (Preventive), New Delhi. The petitioner also impugns the constitutional validity of Sections 86, 87, 88, 94 & 97 of the Finance Act, 2022. In addition, the petitioner has also assailed the show cause notice dated 18.05.2018.
2. At the outset, the learned counsel appearing for the petitioner states that he confines the present petition to impugning the order-in-original dated 18.12.2020 and, in the alternative, praying for waiver of any pre-deposit under Section 129E of the Customs Act, 1962 (hereafter ‘the Customs Act’) for maintaining an appeal before the learned Customs, Excise and Service Tax Appellate Tribunal (hereafter ‘CESTAT’). He does not press any other relief.
3. In terms of the order-in-original, the Adjudicating Authority has imposed a penalty of Rs. 6,00,00,000/- under Section 112(b)(i) of the Customs Act.
4. The impugned order indicates that the officers of the Directorate of Revenue Intelligence, acting on the basis of specific intelligence, had boarded the Train No. 12313, Sealdah - New Delhi Rajdhani Express at Kanpur Railway Station on 20.11.2017.
5. The object was for surveillance on certain person suspected of being involved in illegal activities. The said person (Ritesh Kumar S/o Devendra Prasad) alighted the train around 10 : 15 am on 20.11.2017 in the yard area of Ghaziabad Junction Railway Station.
6. He was apprehended and certain gold bars of foreign origin were allegedly recovered from him, in addition to certain Indian currency.
7. It is alleged that Sh. Ritesh Kumar could not produce any document showing the import or purchase of the gold bars in question, which, according to the department, weighed around 22625 grams. The said goods were thereafter seized and the statement of Sh. Ritesh Kumar was recorded under Section 108 of the Customs Act.
8. It appears that Sh. Ritesh Kumar implicated one Sh. Rajesh Thakur of Haryana Bullion and, inter alia, stated that he was required to hand over the gold bars to the said person. He also named one Sh. Dilip Kumar of Haryana Bullion. It is stated that Sh. Dilip Kumar has implicated the petitioner.
9. The penalty has been imposed on the petitioner solely on the basis of a string of statements recorded in the said proceedings.
10. The petitioner disputes that he has any connection with the said persons or that he has carried out any business or transactions with them. The petitioner also submits that the respondents have not recovered any contraband from the petitioner or any proceeds that could be attributed to contraband.
11. The petitioner has filed the copies of Income Tax Returns for the last few years. His Income Tax Return for the Assessment Year 2019-2020 indicates that the petitioner's gross income for the Financial Year 2018-2019 was Rs. 4,93,770.
12. The petitioner has also produced statements of his bank accounts, which indicate that the balances available in the said accounts are as under:—
|
| A/c No. | A/c Holder | Bank | Balance as on 31.03.2020 | Amount as on today |
| 1 | Current Account No. 330393309899 | Haryana Jewellers | State Bank of India | 1,06,878.54 | 35,404.54 |
| 2 | Current Account No. 113205501155 | Haryana Jewellers | ICICI Bank Ltd. | 45,526.64 | 2,03,404.56 |
| 3 | Saving Account No. 629201061337 | Haryana Jewellers | ICICI Bank Ltd. | 40,264.75 | 19,511.75 |
13. The bank account statements also indicate that there has been no substantial withdrawal from the same.
14. The petitioner had also filed a petition challenging an order-in-original dated 20.11.2020 [W.P.(C) No. 6855/2022], whereby a penalty of over Rs. 110 Crores was imposed on the petitioner. In the said proceedings, this Court had noted that the said penalty was also imposed on the basis of st
